Thursday, August 28, 2014

Weeping and Gnashing of Teeth...

Plaintiff is an insurance defense lawyer. Although she was employed by a firm, essentially all of her legal work consisted of defending the insureds of Chubb, petitioner on this writ. She claims that after she took medical leave in connection with a pregnancy, her performance evaluations—which included commentary by Chubb and its insureds—inexplicably declined, ultimately leading to her termination. She sued both her firm and Chubb for employment discrimination. Plaintiff requested her performance reviews and related documents in discovery. Chubb took the position that since plaintiff was privy to client communications within the documents, plaintiff herself could review them, but that she could not show them to her attorneys. Similarly, Chubb took the position that the privilege barred it from providing unredacted documents to its own litigation attorneys for their review. The trial court, relying on Fox Searchlight Pictures, Inc. v. Paladino, 89 Cal. App. 4th 294 (2001), held that the attorney-client privilege did not preclude revealing the documents to the parties’ litigation attorneys. Chubb took a writ.

The first district denies the writ. It finds that Fox Searchlight controls. In that case, an in-house attorney sued Fox for pregnancy discrimination. (Sound familiar?) In the course of resolving an anti-SLAPP motion, the court held that it was permissible for the attorney to disclose her former client’s—the defendant’s—privileged communications to her own attorney for the purposes of evaluating an employment litigation. The facts at hand here are not meaningfully distinguishable. In reaching this result, the court rejects a number of hyperbolic arguments advanced by Chubb, including a claim that permitting attorneys embroiled in employment litigation to disclose privileged client information to their litigation counsel would “spell[ ] doom for the attorney-client relationship[.]”